Citation Nr: 0712044
Decision Date: 04/25/07 Archive Date: 05/01/07
DOCKET NO. 04-42 097 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to an increased rating for chondromalacia
patella, left knee, currently evaluated as 20 percent
disabling.
2. Entitlement to service connection for a head injury.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
D. Johnson, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1966 to
September 1968.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a June 2003 decision rendered by the Columbia,
South Carolina Regional Office (RO) of the Department of
Veterans Affairs (VA), which granted a claim for an increased
rating for a service-connected disability of chondromalacia
patella, left knee, and assigned a 20 percent disability
rating; and denied service connection for a head injury.
The issue of entitlement to an increased rating for
chondromalacia patella, left knee is addressed in the REMAND
portion of the decision below and is REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. There is no evidence of a head injury or trauma during
service.
2. There is evidence of head trauma several years following
separation from service; and current findings have not been
causally related to military service by competent medical
evidence.
CONCLUSION OF LAW
A head injury was not incurred in or aggravated by military
service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2006)
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The provisions of the Veterans Claims Assistance Act of 2000
(VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a), and as interpreted by the United States Court of
Appeals for Veterans Claims (the Court) have been fulfilled
by information provided to the veteran in letters from the RO
dated in May 2003 and June 2004. Those letters notified the
veteran of VA's responsibilities in obtaining information to
assist the veteran in completing his claim, identified the
veteran's duties in obtaining information and evidence to
substantiate his claim, and requested that the veteran send
in any evidence in his possession that would support his
claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)),
Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v.
Principi, 18 Vet. App. 112 (2004). See also Mayfield v.
Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other
grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson
(Mayfield II), 20 Vet. App. 537 (2006).
The veteran contends he is entitled to service connection for
residuals from a head injury, which he alleges was sustained
in service. The Board has considered the veteran's
contentions, but finds however, that the preponderance of the
evidence is against the claim.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002);
38 C.F.R. § 3.303 (2006).
As a general matter, service connection for a disability on
the basis of the merits of such claim is focused upon (1) the
existence of a current disability; (2) the existence of the
disease or injury in service, and; (3) a relationship or
nexus between the current disability and any injury or
disease during service. See Cuevas v. Principi, 3 Vet. App.
542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143
(1992).
Initially, the Board notes that service medical records are
negative for any history of head trauma or injury, or
neurological disorder in service.
In November 1968, only months after his separation from
service, the veteran underwent a VA medical examination. The
report is silent for any reference to a head injury or
neurological disorder resulting from service.
There is also no record of complaints or medical treatment
for a head injury for many years following separation from
service. Notably, the Board observes that there was an
intervening event of a head injury, with additional neck and
back trauma, due to a work-related accident in November 2002,
several years after service.
Various post-service VA and private medical records show
treatment beginning in April 2003, for complications from
this November 2002 work-related injury. In particular, an
April 2003 VA outpatient record noted that the veteran fell 6
feet off a ladder at his place of employment and hit his
head, neck, and back in the fall and loss consciousness for a
brief period. The veteran reported having had headaches,
memory loss, and blurry vision since then. He also indicated
that his bottom front teeth had been loosened as a result of
the fall. A diagnosis of post-concussion syndrome was
rendered. Private medical records dating from May 2003 to
January 2004 also generally reflect treatment for headaches
and neck and back pains, status-post the November 2002 on-the
job injury. Diagnoses have also included osteoarthritis and
degenerative joint disease of the neck and back.
As noted, service connection requires an injury in service,
and a relationship or nexus between the current disability
and injury during service. Here, the evidence, including the
veteran's own statements, consistently shows that an initial
head injury occurred in November 2002, and not prior. The
Board finds that this intervening event, along with the
absence of evidence of treatment prior to 2003, further
suggest that a head injury, or any claimed residuals, was not
incurred in or aggravated by military service. See Maxson v.
Gober, 230 F.3d 1330 (Fed. Cir. 2000).
However, the requisite link between a current disability and
military service may be still established, in the absence of
medical evidence that does so, by medical evidence that the
veteran incurred a chronic disorder in service and currently
has the same chronic disorder, or by medical evidence that
links a current disability to symptoms that began in service
and continued to the present. Savage v. Gober, 10 Vet. App.
488, 498 (1997); 38 C.F.R. § 3.303(b).
In addition, certain chronic diseases, including arthritis,
may be presumed to have been incurred or aggravated during
service if they become disabling to a compensable degree
within one year of separation from active duty. 38 U.S.C.A.
§§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.
Here, service medical records are negative for any diagnosis
of a chronic disorder, such as arthritis. Thus, the evidence
submitted must show that the current arthritis of the back
and neck, alleged to have resulted from a head injury in-
service, became manifested within at least one year following
separation from service.
In this case, the first diagnosis of degenerative joint
disease of the lumbar and cervical spine, secondary to a head
injury, was during a private medical evaluation in May 2003,
following the November 2002 work-related accident. The
veteran separated from active military service in September
1968 and at such time he had not been diagnosed with
degenerative joint disease. Arthritis was not until 25 years
after leaving military service and the overwhelming evidence
establishes that it was caused by the November 2002 post-
service injury. Thus, he is not entitled to presumptive
service connection for arthritis claimed as a residual of a
head injury.
On the basis of the foregoing, the Board finds that the
criteria for establishing service connection for a head
injury have not been met. In reaching this conclusion, the
Board has considered the applicability of the benefit-of-the-
doubt doctrine. However, as the preponderance of the
evidence is against the veteran's claims, that doctrine is
not applicable in this appeal. See 38 U.S.C.A. § 5107(b);
Gilbert v. Derwinski, 1 Vet. App. at 55-57 (1990).
ORDER
Service connection for a head injury is denied.
REMAND
The Veterans Claims Assistance Act of 2000 (VCAA) is
applicable to this appeal. To implement the provisions of
the law, the VA promulgated regulations codified at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a). The Act and
implementing regulations provides that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim but is not required to provide assistance to a claimant
if there is no reasonable possibility that such assistance
would aid in substantiating the claim. It also includes new
notification provisions.
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a claim, including the degree of disability and the
effective date of an award. Because a remand of the case for
further development is necessary, the RO is provided the
opportunity to afford the veteran proper notice under 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b); see Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
The veteran is currently service connected for a left knee
disability with an evaluation of 20 percent. He contends
that he is entitled to a higher disability evaluation for his
service-connected chondromalacia patella, left knee as his
disability has worsened in severity.
VA and non-VA medical treatment records since April 2003
generally reflect that the veteran injured both of his knees,
in November 2002, in a 6-8 feet fall from a ladder, while at
work. His left knee suffered greater injury that the right
knee.
The veteran was afforded two VA examinations in connection
with his left knee increased rating claim, in June 2003 and
November 2003. However, not only are these examinations
stale, as they are over four years old, the Board observes
neither of the examinations were conducted with the benefit
of the veteran's claims file. As such, these examination
reports are not adequate for rating purposes. The duty to
assist may require "the conduct of a thorough and
contemporaneous medical examination, one which takes into
account the records of prior medical treatment, so that the
evaluation of the claimed disability will be a fully informed
one." See Green v. Derwinski, 1 Vet.App. 121, 124 (1991).
Further, the Court has held that in evaluating a service-
connected disability, functional loss due to pain under
38 C.F.R. § 4.40 (1997) and functional loss due to weakness,
fatigability, incoordination or pain on movement of a joint
under 38 C.F.R. § 4.45 (1997) must be considered, including
use during flare-ups. DeLuca v. Brown, 8 Vet.App. 202, 206
(1995). This assessment was not performed.
Therefore, while the Board regrets any further delay in this
case, in light of these circumstances, the veteran must be
afforded another VA examination for evaluation of the issue
on appeal.
Accordingly, the case is REMANDED for the following action:
1. The RO should provide the veteran a
corrective VCAA notice under
38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b), that includes an explanation
as to the information or evidence
needed to establish a disability rating
and effective date for the claim on
appeal, as outlined by the Court in
Dingess v. Nicholson, 19 Vet. App. 473
(2006).
2. The RO should contact the veteran and
obtain the names, addresses, and
approximate dates of treatment of all
medical care providers, VA and non-VA,
who treated the veteran for a left knee
disability since November 2003. After
the veteran has signed the appropriate
releases, those records should be
obtained and associated with the claims
folder. All attempts to procure records
should be documented in the file. If the
RO cannot obtain records identified by
the veteran, a notation to that effect
should be inserted in the file. The
veteran and his representative are to be
notified of unsuccessful efforts in this
regard, in order to allow the veteran the
opportunity to obtain and submit those
records for VA review.
3. The RO should schedule the veteran
for a VA orthopedic examination to
ascertain the severity of the
chondromalacia patella, left knee. All
indicated tests and studies are to be
performed. Prior to the examination,
the claims folder must be made
available to the physician for review
of the case. A notation to the effect
that this record review took place
should be included in the report of the
physician.
In reporting the results of range of
motion testing in degrees, the
physician should specifically identify
any excursion of motion accompanied by
pain. The examiner should identify any
objective evidence of pain and assess
the extent of any pain. Tests of joint
motion against varying resistance
should be performed. The extent of any
incoordination, weakened movement and
excess fatigability on use should be
described. To the extent possible, the
functional impairment due to
incoordination, weakened movement and
excess fatigability should be assessed
in terms of additional degrees of
limitation of motion. The examiner
should also express an opinion
concerning whether there would be
additional limits on functional ability
on repeated use or during flare-ups (if
the veteran describes flare-ups), and
if feasible, express this in terms of
additional degrees of limitation of
motion. The physician should also
discuss any additional impairment of
the left knee disability, which was
caused by the intervening injury in
November 2002, as opposed to natural
progression of the service-connected
chondromalacia patella disorder.
4. The veteran must be given adequate
notice of the date and place of any
requested examination. A copy of all
notifications, including the address
where the notice was sent must be
associated with the claims folder. The
veteran is to be advised that failure to
report for a scheduled VA examination
without good cause shown may have adverse
effects on his claim.
5. When the above development has been
completed, the RO should readjudicate the
issue on appeal based on a de novo review
of all pertinent evidence. If the
benefits sought on appeal are not granted
to the veteran's satisfaction, the RO
should issue a Supplemental Statement of
the Case and afford the veteran and his
representative the requisite opportunity
to respond.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim
must be afforded expeditious treatment. The law requires
that all claims that are remanded by the Board of Veterans'
Appeals or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
must be handled in an expeditious manner. See 38 U.S.C.A. §§
5109B, 7112 (West Supp. 2006).
______________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs